Litigation for the Community

The Jumbunna Litigation Research Unit is dedicated to the conduct of research and advocacy at the intersection of Aboriginal communities and the Australian Legal Framework.

Working at the intersection of research, policy and litigation, the Unit uses Research to identify areas in the Australian legal system that both deny justice to Aboriginal communities, and in which change may be achievable.

Once identified, the Unit works with stakeholders to attempt to support and effect change. Working in collaboration with the Research and New Media arms of Jumbunna Research, the Litigation Research Unit has worked with an integrative approach on behalf of the Bowraville and Muckaty communities on major projects seeking to promote the interests of Aboriginal communities.

My name is Craig Longman, I’m the head of legal strategies here at Jumbunna Research Unit.

I came to Jumbunna originally through relationship with its director professor larissa behrendt. We worked together on a case down in Narouma involving a number of young aboriginal men who had been interviewed by police and a time of night where they new that there obligation to notify the aboriginal legal service would be ineffective.SO effectively they would send a fax after hours and they new that no solicitor would show up.and they would get to interview these young aboriginal men with no representatives present.So we took that case and really it was through working on that case and working with Jumbunna staff when we where working on the watten defence up on palm island that we started identifying that there is some scope here for some research and some thinking around what kind of litigation and what kind of legal tactics are really effective both at holding the state accountable and also at trying to foster and really assist with the self determination that indigenous nations are executing and that indigenous nations are effecting all over the country on a day to day basis. The large part of coming to Jumbunna was really the ability and the opportunity to work with Larissa, the work that we do and the strategic litigation arena, the work we have done, particularly on cases like Bowraville, has really been driven and guided by a vision that she and I share. and has really been guided by a vision that she shares with all the staff here at Jumbunna about the importance of research that has an impact on the ground and the importance on acting both on your moral conviction but also from a place from respect and allegiance with community.

So the work that we did in Bowraville, and throughout this recording I am going to talk a little bit about Bowraville and it is important to say upfront that when I say we in this context I say both for Jumbunna staff and there are a number of staff that have been and remain involved the bowraville case and other cases and also the students that work with us from the faculty and also recognise the role that the community play strongly and the leadership role that Professor Behrendt plays in the work that we do and how we do that work.

Bowraville came to us, as most cases come to us, with the community approaching Jumbunna, which is how we work. We wait for the community to come and ask us for assistance. That’s a very tragic case. It’s quite old now, but it’s never gone stagnant. It involved the murder of three aboriginal children in the community of Bowraville, Northern New South Wales.

From the moment the children first went missing, before they knew that they had been murdered, the community had gone to the police for assistance. You need to understand the history of a community like Bowraville, where the police … Certainly, at that time, there was a lot of racism in the police force. And not even explicit racism necessarily, where they saw what they were doing, but racism where they just assumed things about aboriginal people and the way that they would act.

So, they let these ideas color how they investigated what was, at the end of the day, a serial murderer out there killing children. That initial investigation was really problematic. A lot of evidence was missed and a lot of connections were missed in the killings that would have changed the way those deaths had been seen. Initially, they were seen as three separate missing persons. And then, it was only when some of the children’s bodies started being found that they realized that it was a serial killing. They initially had child protection police officers involved instead of homicide police officers, for instance.

The community went to the police on numerous occasions and said, “We’re worried about our kids,” and they were told things like, “Well, maybe your child’s gone walkabout,” which is a terrible thing to say to the mother of a four year old child who’s gone missing. The initial police investigation happened. The police had a suspect in those killings, and that person was tried in relation to one killing. The law at the time in New South Wales made it a very difficult task to bring multiple charges on one trial, so one trial was brought. There was an attempt to bring two of the murders in the first trial, and the judge said no.

Then, a second trial was tried later on in 2004, and the judge excluded any evidence of the other two killings. You had a situation where families were sitting in the court, and they’re hearing what is supposed to be, in the minds of any normal citizen in New South Wales, the story of what happened, that goes to the jury and then the jury decides if anyone’s guilty of anything. They listened to this story and the questions obviously rise up and did is, why are they only talking about one child when three have disappeared?

One of the striking things about that case was the community, and the community’s relentless pursuit of justice. Probably, the central message that’s always come from the community in this case is, you, the state, have failed us and you owe it to us to make it good. It’s not enough to just say, “Yeah, we failed.” This person is still out there; this person who took our kids, and it’s your job to find them.

The community kept that struggle up for a long time, and when they came and saw us, a number of things had happened. One of the things that they’d done, which is extraordinary by any measure, was they’d convinced the New South Wales parliament to amend the principle of double jeopardy, which is a principle that says once you’ve been acquitted of something, then you can’t be tried for it again. So, they changed the law. But when they changed the law, they weren’t very clear about exactly what kind of cases would fall within it. So, they’d been to two separate attorney generals by that time to ask the attorney generals to retry this individual on all three murders. Both times, they’d been told no.

The police, after the initial investigation, had conducted a reinvestigation led by Detective Inspector Gary Jubelin, who’s now an Inspector. That reinvestigation was an entirely different thing. Rather than try and conduct it in the way that they would in a non-aboriginal community for instance, the first thing those officers did was went up and sat down with the community and let them know they were in it for the long haul, and built those relationships up, and they started getting evidence then, once the community trusted them. Because they started asking questions, rather than just making assumptions.

So, a lot of evidence came out, and that evidence has been sitting there for a long time. Now when we got involved, we really worked where the community wanted us to work. One of the concerns the community had was that the matter only ever appeared in the media or got any traction when a journalist was writing about it, which they were finding it difficult to maintain that momentum. So we put the story together as the documentary, in the documentary form, and that was predominantly about allowing the community to tell their story about what happened in Bowraville, and to talk about who these children were.

So, rather than looking at it as a case of where the police stuffed up, the documentary was about understanding what the impact on that community was, and one of the lessons that was really clearly learned in Bowraville is, you need to understand what motivates the humanity of a person if you want them to change or if you want them to do something. It’s all well and good to appeal to concepts of justice, or things that are right or wrong, but that doesn’t mean a great deal to someone on the human level. So, once those stories of the children were told, and the stories of the community were told, there was a renewed interest in the New South Wales parliament to reinvestigate the matter. They conducted an inquiry, which also generated a lot of really consolidated evidence that was already there, but also consolidated the story about how we’d found ourselves in a situation where the most notorious serial killings of children in Australian history is not known by anyone.

We worked with the police and we conceived some legal arguments. Now, we did all of this with the use of students, and volunteers and interns, over a number of years, and we wrote an application for the New South Wales police, and they submitted that to the previous attorney general, and that was successful. So, the matter returned before the court of criminal appeal last year and we’re not waiting for a judgment on whether or not this person will have to face their day in court and face the full story of what happened up there.

It became really clear to us, in Bowraville, but also more generally, when we looked at all the work the unit did across the different areas, everybody’s most impactful work started with story, started with what’s the story here. Because everything else, potentially our talk, it’s the ability to tell a story well, as is the ability to craft a legal argument well. They’re all well and good, but you have to understand what the story is that’s going to compel change.

The other thing to say about that too is, there is power in allowing a story to be told, especially in the Australian context where, quite often, a community story of injustice is taken, changed, morphed, bashed about, and then regurgitated in a different format, like a courtroom for instance. We can often see that … Speaking as a lawyer, we see that as professionalism. We say, “Well, this is how that story is presented to the court.” But that’s very disempowering too, because it’s telling you your story is not what matters. This thing that we’ve done to it is what matters.

Bowraville is a really good example of a situation where, there were a lot of people who were willing to use Bowraville as a vehicle for whatever their skill set was. Journalists were willing to write the article, provided the story provided them with a good article. Lawyers would use it and then apply their skill set to it. But, who were the people who were going to come to that place with a perspective, first and foremost, of saying to the community, “We believe you’re right. This was a racist investigation, and nothing happens here. Where can we flow? What cracks can we open up? What levers can we pull? What buttons can we push?

Bowraville was a really interesting experience to me, because before Bowraville, I would have told you that there’s only so many sites of influence that you can have an impact on. The way we worked in Bowraville was, just to sit as an ally. Just do what was asked of us. Allow the community and the families to direct the strategy, and working with the police to direct the strategy. Not is it just a case of this case coming back into court, but we’ve changed the way law schools have to teach their students about cultural issues. We’ve changed the way the police investigate homicides. We’ve had a parliamentary inquiry into a criminal case, which has never happened in the history of New South Wales before. We’ve survived going on four attorney generals in the course of the case.

We’ve also had an impact in the judge’s book. So, when you look at the impact, we’ve impacted the students who are going to be solicitors, the police who investigate crimes, the solicitors who run the cases, the barristers who run the cases, and the judges in front of whom the cases are run, and we did it all not just without silencing the community’s voice, but because the community’s voice was the center of it. We gave up our role as assuming that we were the most profound influencers, and let the story speak for itself. Then, we were just shepherds after that.

Our work here in the clinic is really about a technical expertise that we deploy in conjunction with the research that comes out of the office. We have researchers here that I doing extraordinary work in a number of research areas for instance in nationbuilding ,work in relation to criminology working relation to cultural and resilience in all these areas what we find consistently is is a need for the understanding of the dominant Colonial legal system a critical approach to that in terms of identifying opportunities to have an impact. In the system or even dominant they can’t even be saying because they considered to be the norm. Really what we do in the clinic is work with the team here agitate to hold the state accountable to MPower and to work with the indigenous communities and really to develop professionals through the clinic both have a broader understanding of what their role leaders both as a lawyer to improve the nature of the society within which they live a citizen of Australia and a citizen of the world what obligations arise from that. Really to a large extent that’s not just about helping the community about helping people who pass through the clinic sustainable practitioners that Gonna be happy and healthy and a going to feel that the end of the day and at the end of their careers that they have contributed something to the fabric the world in which they live.